Wesson v. State

• Decision Date: 10 June 1948
• Docket Number: 7 Div. 967.
• Citation: 36 So.2d 361,251 Ala. 33
• Parties: WESSON v. STATE.
• Court: Alabama Supreme Court

36 So.2d 361

251 Ala. 33

WESSON v. STATE.

7 Div. 967.

Supreme Court of Alabama

June 10, 1948

C W. Stringer, of Talladega, and Handy Ellis, of Columbiana for petitioner.

A A. Carmichael, Atty. Gen., and Richard S. Brooks, Asst. Atty Gen., opposed.

SIMPSON Justice.

The petition for writ of certiorari to the Court of Appeals was granted to consider one question which merited treatment.

The defendant was convicted of manslaughter in the first degree on a murder indictment, charging in Count 1 that the deceased's death was caused by the defendant beating him with his fists and stomping him with his feet, and in Count 2 by inflicting blows upon the person of the deceased with defendant's fists and feet, which injuries allegedly resulted in death. It is to be noted that each of the counts of the indictment charge that death resulted conjunctively from being beaten with fists and stomped with feet.

The trial court refused to the defendant his special written Charges B and C, which directed, respectively, an acquittal if the jury 'believe from the evidence' that the injuries which caused deceased's death were inflicted alone by the defendant with his fists (Charge B) or solely by the deceased having been kicked by the defendant (Charge C). $The Court of Appeals justified the refusal of these two charges on the theory that they were 'belief' charges. So-called belief charges have been denounced as erroneous in civil cases because the jury's verdict in such cases must be reached after becoming 'reasonably satisfied' from the evidence. Cain v. Skillin, 219 Ala. 228, 233(9), 121 So. 521, 64 A.L.R. 1022, and cases cited.

However, the proper hypothesis for a requested charge in a criminal prosecution is rested on belief from the evidence. Bush v. State, 211 Ala. 1, 100 So. 312.

Charges B and C, therefore, were in proper form and it becomes our duty to consider the propriety of their refusal. After research and serious consideration, we have concluded that the two charges sought to expound an unsound legal principle. Under our own cases they must be held bad.

In an indictment for homicide, the means by which the offense charged is committed does not enter into the essence of the crime, is not a constituent element of the offense. The unlawful and malicious killing, regardless of the means employed, is the criterion. Gaines v. State, 146 Ala. 16, 23, 41 So. 865.

Every constituent of murder was averred in the indictment under consideration and 'it is sufficient, if the substance of the charge be proved, without regard to the precise instrument used. Though the indictment charges a particular weapon, the averment is substantially proved, if it be shown that some other instrument was employed, which occasions a wound of the same kind as the instrument charged, and the same consequences naturally follow.' Hull v. State, 79 Ala. 32, 33.

We have cases affirming the principle that an allegation that the deceased was killed with a knife is sufficiently proven by showing that he was killed with a razor or an instrument of like kind and character, or if the allegation was that he was killed with a gun, proof that he met his death by being shot with a pistol was sufficient. The rule being that the means by which the offense of murder is committed not entering into the essence of the crime, it is only necessary that the means alleged be substantially, though not literally, proven. Huckabee v. State, 159 Ala. 45, 49, 48 So. 796; Jones v. State, 137 Ala. 12, 34 So. 681; Hull v. State, supra; Phillips case, Phillips v. State, 68 Ala. 469, 471; Rodgers v. State, 50 Ala. 102; Threatt v. State, 32 Ala. App. 416, 26 So.2d 530; Oliver v. State, 234 Ala. 460, 175 So. 305.

Using these authorities as our guide, we must hold that error cannot be rested on the refusal of the two requested charges. There is no substantial difference between the instruments which allegedly caused the deceased's death, that is, whether by being beaten by defendant with his fists or stomped with his feet, and we are of the opinion that the trial judge correctly refused the stated charges.

On the question of the sufficiency of proof to sustain disjunctive averments in criminal charges, we find this principle stated in 42 Corpus Juris Secundum, Indictments and Informations, § 101, p. 984:

'* * * As a general rule, where a statute specifies several means or ways in which an offense may be committed in the alternative, it is bad pleading to allege such means or ways in the alternative; the proper way is to connect the various allegations in the accusing pleading with the conjunctive term 'and' and not with the word 'or.' * * *.'

It is observed in Price v. United States, 5 Cir., 150 F.2d 283, where a statute...